Unfair (43 page)

We expect people to be consistent:
Sam Sommers,
Situations Matter
(New York: Riverhead Books, 2011), 30.

In a famous study documenting:
Edward Jones and Victor Harris, “The Attribution of Attitudes,”
Journal of Experimental Social Psychology
3 (1967): 1, 4.

Despite being told that:
Jones and Harris, “Attribution of Attitudes,” 1, 4–6.

As Supreme Court Justice Hugo Black:
Chambers v. Florida, 309 U.S. 227, 237–38 (1940).

Indeed, before the 1930s:
Simon,
In Doubt
, 132; Kassin et al., “Police-Induced Confessions,” 6. For a review of the coercive police practices—from beating with a rubber hose and simulated suffocation to deprivation of sleep and food, see R. A. Leo, “The Third Degree and the Origins of Psychological Police Interrogation in the United States,” in
Interrogations, Confessions, and Entrapment
, ed. G. Daniel Lassiter (New York: Kluwer Academic, 2004), 37–84.

But that has been abandoned:
Simon,
In Doubt
, 134–35. Of course, it is worth noting that, well prior to the 1930s, the Supreme Court made clear that an admissible confession had to be “free and voluntary” and “must not be extracted by any sort of threats or violence.” Bram v. United States, 168 U.S. 532, 542–43 (1897). It just took a few more decades for police practice to match the judicial rhetoric.

Juan Rivera, though, did falsely confess:
Confessions, as a general matter, are fairly common, despite what we might imagine. It appears that there is a full confession or, at least, an incriminating statement made in about half of all interrogations. Simon,
In Doubt
, 120; Saul M. Kassin et al., “Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs,”
Law and Human Behavior
, 31 (2007): 395.

One of the first American episodes of false confession came during the Salem witch trials in 1692, when dozens of women admitted to practicing witchcraft. Kassin et al., “Police-Induced Confessions,” 4; Carol F. Karlsen,
The Devil in the Shape of a Woman: Witchcraft in Colonial New England
(New York: W.W. Norton & Company, 1998). However, false confessions are not an American phenomenon and have been documented in Germany, Canada, Ireland, China, Japan, and numerous other countries. Kassin et al., “Police-Induced Confessions,” 5.

False confessions and incriminating statements:
Innocence Project, “DNA Exonerations Nationwide,” accessed May 6, 2014,
http://www.innocenceproject.org/​Content/DNA_Exonerations_Nationwide.php
.

More broadly, they appear to have:
“DNA Exonerations Nationwide.”

These cases tend to confound:
Simon,
In Doubt
, 134–36. In one sample, more than 30 percent of the reviewed cases of false confession involved more than one innocent person confessing. Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post-DNA World,”
North Carolina Law Review
82 (2004): 972.

Indeed, in one of the most famous:
The boys were subjected to lengthy interrogations and immediately retracted their statements after being arrested. However, they were all convicted and sent to prison, until the true rapist confessed and agreed to a DNA test. Brandon L. Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go Wrong
(Cambridge, MA: Harvard University Press, 2011), 31; “Central Park Jogger (1989),”
New York Times
, October 3, 2012,
http://topics.nytimes.com/​top/reference/​timestopics/subjects/c/​central_park_jogger_case_1989/​index.html
; Kassin et al., “Police-Induced Confessions,” 4.

While some who falsely confess:
Simon,
In Doubt
, 121. For a discussion of the different types of confessions, see Lawrence S. Wrightsman and Saul M. Kassin,
Confessions in the
Courtroom
(Newbury Park, CA: Sage, 2003), 84–93. The focus in this chapter is on coerced confessions. There is an entirely separate category of truly voluntary false confessions, which may emerge particularly following highly publicized crimes. Two hundred people, for example, are known to have confessed to the kidnapping of Charles Lindbergh's infant son. Kassin et al., “Police-Induced Confessions,” 14.

The generally accepted gold standard:
Fred E. Inbau et al.,
Criminal Interrogation and Confessions
, 5th ed. (Burlington, MA: Jones & Barlett Learning, 2013); Simon,
In Doubt
, 121–22; Garrett,
Convicting the Innocent
, 22. Hundreds of thousands of investigators in North America, Europe, and Asia have been trained in the Reid technique. Inbau et al.,
Criminal Interrogation
, viii.

Using the Reid approach:
Inbau et al.,
Criminal Interrogation
, 3–7, 187. Investigators following the Reid technique may ask “behavior-provoking questions” (e.g., “Jim, under any circumstances do you think the person who started that fire should be given a second chance?”) meant to induce revealing behavior, like fidgeting with one's hands, averting one's gaze, and freezing up. Inbau et al.,
Criminal Interrogation
, 155, 161; Kassin et al., “Police-Induced Confessions,” 6.

And far from correcting:
Inbau et al.,
Criminal Interrogation
, 101–37; Simon,
In Doubt
, 127–28.

Indeed, it is innocent people:
Simon,
In Doubt
, 140.

They tend to assume:
There is some evidence that being innocent may actually increase one's risk of falsely confessing. Kassin et al., “Police-Induced Confessions,” 22–23.; Simon,
In Doubt
, 140.

Since they didn't commit the crime:
Simon,
In Doubt
, 140.

But, in reality, once the interrogation:
Inbau et al.,
Criminal Interrogation
, 185–327; Simon,
In Doubt
, 133.

To this end, the Reid manual:
Kassin et al., “Police-Induced Confessions,” 12. The Reid manual, for instance, suggests bringing in a false evidence file into the interview room along with “other visual props, such as a DVD disc, CD-ROM, audio tape, a fingerprint card, an evidence bag containing hair or other fibers, spent shell casings, vials of colored liquid, and others.” Inbau et al.,
Criminal Interrogation
, 192.

As a result, the environment:
Kassin et al., “Police-Induced Confessions,” 7; Simon,
In Doubt
, 134.

Many who falsely confess later say:
Simon,
In Doubt
, 134; Brandon Garrett,
Convicting the Innocent
, 18.

And experimental evidence suggests:
It has been hypothesized that because resisting accusations during an interrogation appears to result in stress-related bodily changes, it may be that participants falsely confess simply to relieve heavy physiologic stress. Max Guyll et al., “Innocence and Resisting Confession During Interrogation: Effects on Physiologic Activity,”
Law and Human Behavior
37 (2013): 8, doi: 10.1037/lhb0000044.

When we have an opportunity:
Rivera
, 962 N.E. 2d at 65–66.

According to the nine steps:
Kassin et al., “Police-Induced Confessions,” 7.

The officer might suggest that:
Inbau et al.,
Criminal Interrogation
, 217–18; Kassin et al., “Police-Induced Confessions,” 12.

Empirical evidence suggests that both of these:
While the minimization technique appears to lead people to believe that they are being promised lenient treatment, maximization tends to be interpreted as a threat. Kassin and Gudjonsson, “The Psychology of Confessions,” 53-55; Saul
M. Kassin and Karlyn McNall, “Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication,”
Law and Human Behavior
, 15 (1991): 233–51; Melissa B. Russano et al., “Investigating True and False Confessions Within a Novel Experimental Paradigm,”
Psychological Science
16 (2005): 481–86. For an overview of this literature, see Simon,
In Doubt
, 135–38; Kassin et al., “Police-Induced Confessions,” 12.

And the effects are not small:
Russano et al., “Investigating True and False Confessions,” 483–84. The minimization prompt provided in the main text is just one example of those used in the experiment.

When the interrogator added:
Russano et al., “Investigating True and False Confessions,” 484. It should be noted that the fifth edition of the Reid manual contains numerous asides offering cautions and caveats, some of which nod to the concerns raised in this chapter. The problem is that, looking at the manual as a whole from a typical reader's perspective, it is hard to view them as anything but exceptions (e.g., gaze aversion is a good way to tell someone is lying, but there are a couple of exceptions). Inbau et al.,
Criminal Interrogation
, 161. Indeed, the Reid manual may pose
more
of a threat now: while the problematic core has been preserved, the current edition contains sufficient hedges and scientific asides to convince judges that it is unlikely to encourage false confessions.

Despite these serious concerns:
It is not as if the Supreme Court has failed to grasp the importance of a confession. In the case of
Colorado v. Connelly
, the Court explained that “the introduction of a confession makes the other aspects of a trial in a court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.” Colorado v. Connelly, 479 U.S. 157, 182 (1986). So, the failure of the Court to make changes to eliminate false
confessions likely reflects mistaken beliefs about the prevalence of such incidents and a fear of constraining police officers and prosecutors.

While the Supreme Court has formally:
Bram v. United States, 168 U.S. 532, 542–43 (1897); Simon,
In Doubt
, 134–36. For instance, a review of cases revealed numerous instances where judges allowed confessions gained after interrogators offered what amounted to a prohibited “deal” (i.e., if you confess, we will make sure you get a lesser sentence). Welsh S. White,
Miranda's Waning Protections: Police Interrogation Practices after Dickerson
(Ann Arbor, MI: University of Michigan Press, 2006). Indeed, while the language that the Supreme Court used in
Bram v. United States
would suggest a firm ban on minimization techniques, the case has been a weak and often nonexistent constraint on such practices. Kassin et al., “Police-Induced Confessions,” 12.

Further, the justices have explicitly sanctioned:
Simon,
In Doubt
, 135; Garrett,
Convicting the Innocent
, 23; Kassin and Gudjonsson, “The Psychology of Confessions,” 54. The Supreme Court has made it clear that deception by the police is not enough by itself to make a confession involuntary. Frazier v. Cupp, 394 U.S. 731 (1969); Kassin et al., “Police-Induced Confessions,” 13. That said, some state courts have barred the actual construction of false evidence (e.g., fake crime lab reports), while continuing to allow the police to lie to the suspect about the existence of incriminating evidence. Kassin et al., “Police-Induced Confessions,” 13.

In one of the most tragic cases:
David K. Shipler, “Why Do Innocent People Confess?”
New York Times
, February 23, 2012,
http://www.nytimes.com/​2012/02/26/​opinion/sunday/why-do-innocent-people-confess.html?pagewanted=all
.

Investigators suspected that Martin:
Shipler, “Innocent People Confess.”

After the fake conversation:
Shipler, “Innocent People Confess.” The interrogator also lied and said that strands of Martin's hair were found in his mother's hand and that a “humidity test” had revealed that he had showered to remove the blood on his body. Kassin et al., “Police-Induced Confessions,” 17.

The father, in fact, never came to:
Shipler, “Innocent People Confess.”

His case involved two:
Simon,
In Doubt
, 140; Gross et al., “Exonerations in the United States 1989 Through 2003,”
Journal of Criminal Law and Criminology
95 (Winter 2005): 523–60.

A disproportionate number of verified:
Those who are young, low in intelligence, or mentally disabled have demonstrated particular susceptibility to coercion and a strong desire to defer to or please interrogators. Garrett,
Convicting the Innocent
, 38; Simon,
In Doubt
, 140.

At the time of his arrest:
Rivera
, 962 N.E. 2d at 59–60; “Juan Rivera, Center on Wrongful Convictions,”
Northwestern Law
, accessed May 6, 2014,
http://www.law.northwestern.edu/​legalclinic/wrongfulconvictions​/exonerations/il​/juan-rivera.html
.

Among other mental illnesses:
Brief for Defendant at 26,
Rivera
(No. 2-09-1060).

Despite these warning signs:
“Juan Rivera, Center on Wrongful Convictions.” His mental health conditions were disclosed to the police on a Mental Data Sheet before the first polygraph. Brief for Defendant at 5,
Rivera
(No. 2-09-1060).